In re Carl S.

Appellate Division of the Supreme Court of New York

In re Carl S.

106 A.D.2d 256, 482 N.Y.S.2d 22, 1984 N.Y. App. Div. LEXIS 21312

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 4, 1984

StatusPublished

This text of 106 A.D.2d 256 (In re Carl S.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Carl S., 106 A.D.2d 256, 482 N.Y.S.2d 22, 1984 N.Y. App. Div. LEXIS 21312 (N.Y. Ct. App. 1984).

Pincite

Opinion

—Order entered June 16, 1983 in Family Court, Bronx County (Stanley H. Nason, J.), finding appellant guilty of committing acts which, if done by an adult, would constitute the crimes of robbery in the third degree and assault in the third degree; adjudicating him to be a juvenile delinquent; and placing him on probation for one year, is unanimously modified to the extent of dismissing the finding of assault in the third degree, and the order is otherwise affirmed, without costs.

We have reviewed the record and agree with both appellant and respondent that the evidence was insufficient to make out the charge of assault in the third degree inasmuch as the essential element of that crime, actually causing “physical injury”, did not occur. (See Penal Law, §§ 120.00, 10.00, subd 9.) The punches as described by the victim were obviously “ ‘delivered out of hostility, meanness and similar motives’ ” but that is not enough to constitute this class A misdemeanor. (Matter of Philip A., 49 NY2d 198, 200, quoting from the Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed Penal Law, p 330.) There being no lesser included offense, we must dismiss the finding which sustained that charge. However, notwithstanding the concession of Corporation Counsel regarding the robbery charge, we find no issue of repugnancy.

We have considered appellant’s other assignments of error and find them to be without merit. Concur — Sandler, J. P., Ross, Carro, Silverman and Kassal, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Order entered June 16, 1983 in Family Court, Bronx County (Stanley H. Nason, J.), finding appellant guilty of committing acts which, if done by an adult, would constitute the crimes of robbery in the third degree and assault in the third degree; adjudicating him to be a juvenile delinquent; and placing him on probation for one year, is unanimously modified to the extent of dismissing the finding of assault in the third degree, and the order is otherwise affirmed, without costs.

We have reviewed the record and agree with both appellant and respondent that the evidence was insufficient to make out the charge of assault in the third degree inasmuch as the essential element of that crime, actually causing “physical injury”, did not occur. (See Penal Law, §§ 120.00, 10.00, subd 9.) The punches as described by the victim were obviously “ ‘delivered out of hostility, meanness and similar motives’ ” but that is not enough to constitute this class A misdemeanor. (Matter of Philip A., 49 NY2d 198, 200, quoting from the Temporary Commission on Revision of the Penal Law and Criminal Code, Proposed Penal Law, p 330.) There being no lesser included offense, we must dismiss the finding which sustained that charge. However, notwithstanding the concession of Corporation Counsel regarding the robbery charge, we find no issue of repugnancy.

We have considered appellant’s other assignments of error and find them to be without merit. Concur — Sandler, J. P., Ross, Carro, Silverman and Kassal, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

106 A.D.2d 256, 482 N.Y.S.2d 22, 1984 N.Y. App. Div. LEXIS 21312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-carl-s-nyappdiv-1984.

Opinion

Related

Cite This Page — Counsel Stack